Kagan gets SCOTUS appointment

posted at 8:48 am on May 10, 2010 by Ed Morrissey

The only surprises in the leak that Barack Obama will appoint Elana Kagan to replace John Paul Stevens on the Supreme Court were the timing and target of the leak. In retrospect, giving the leak to NBC shouldn’t really surprise anyone, considering how determined its cable network has been to act as Obama’s apologist channel:

President Barack Obama will nominate Solicitor General Elena Kagan to the Supreme Court, positioning the court to have three female justices for the first time, NBC News reported late Sunday.

Kagan served as the Dean of Harvard Law School from 2003 to 2009. She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job.

At 50 years old, Kagan would be the youngest justice on the court, one of many factors working in her favor. She has the chance to extend Obama’s legacy for a generation.

The timing seems less explicable. The late-Sunday leak gets the White House almost nothing it could have had with an early-Monday leak, and it missed the opportunity of pre-empting the Sunday talk shows’ focus on the Times Square bomber and the Gulf oil spill, two narratives that don’t play well for the administration. Instead, the news broke when most people weren’t paying attention at all — not quite as bad as a Friday afternoon document dump, since it would just make it in time for the Monday morning newspapers, but pretty close to the famous bad-news strategy every administration employs.

Is the White House that embarrassed by the choice of Kagan? She has no experience as a judge, and little as a private-sector attorney, either. Kagan has spent most of her career as an academic, spending six years as Dean of the Harvard Law School — giving the court yet another Harvard connection when people have been questioning Harvard and Yale exclusivity on the Supreme Court. For the past fifteen months, Kagan has served as Solicitor General, the Obama administration’s representative to the Supreme Court, but that experience seems rather thin as well. One might have expected someone who hadn’t served as a judge to spend at least several years arguing cases before the Court prior to getting appointed to it.

For “the most transparent administration in history,” Kagan has a very thin paper trail to give clues to her beliefs. She has not published much — a rarity among Harvard Law deans — which Ed Whelan argues doesn’t meet Kagan’s own standards for Supreme Court justices.

What does all this mean? It signals that the White House doesn’t want a big fight over a Supreme Court confirmation. They don’t want to appoint someone with a track record of judicial activism or a record of strong political advocacy. Obama wants a stealth candidate, someone who can win a relatively quick confirmation battle. Of the names floated by the White House after Stevens’ retirement, Kagan attracted the least amount of public opposition.

Will they get a quick and painless confirmation? Republicans may feel that Kagan was the least problematic of the available choices. She is perceived, at the moment, as a moderate liberal, but that may not necessarily be the case when Kagan starts deciding cases. Her position on keeping military recruiters off of college campuses certainly paints a different picture of those politics:

Beginning in 2004, Kagan changed established Harvard policy and barred recruiters from the school’s career center. The Pentagon responded by invoking the Solomon Amendment, a 1994 law that explicitly requires universities that receive federal funding to allow military representatives at least as much access to campus as any other group. With Harvard’s $400 million in annual grants on the line, Kagan was forced to surrender.

But she kept fighting. Kagan and the university filed an amicus brief arguing that Harvard’s policy did not amount to discrimination against the military. The university, claimed the brief, does “not single out military recruiters for disfavored treatment: Military recruiters are subject to exactly the same terms and conditions of access as every other employer.”

Kagan has since claimed she was merely representing Harvard’s institutional view on the matter. Yet the brief includes a footnote that she signed in her capacity as a professor, not as dean.

Either way, the Supreme Court was not impressed. Not only did the justices dismiss Kagan’s arguments, not a single liberal on the court offered a word of support. Souter, Ginsburg, Breyer and John Paul Stevens (the man Kagan would replace), all agreed with the majority decision written by Chief Justice Roberts.

Kagan may have had a sterling reputation as a law school dean, but as a jurist, she’s a mediocrity simply on the basis that she has no experience at all in that position. There is an argument to be made to appoint people outside of the realm of judges to the Supreme Court to get real-world perspective (the Constitution doesn’t require that an appointee be an attorney, let alone a judge), but very few people would look at Kagan’s career as anything but academic and insider politics. While Kagan may be the least objectionable of Obama’s potential appointees, the truth is that she’s a lot like Obama — an academic with no experience for the position she seeks, with a profound lack of intellectual work in her CV. Republicans who oppose Kagan should focus on those shortcomings.

Will there be any massive push against Kagan? I’m betting she’ll get around 70-75 votes for confirmation despite these shortfalls.

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The timing seems less explicable. The late-Sunday leak gets the White House almost nothing it could have had with an early-Monday leak, and it missed the opportunity of pre-empting the Sunday talk shows’ focus on the Times Square bomber and the Gulf oil spill, two narratives that don’t play well for the administration. Instead, the news broke when most people weren’t paying attention at all — not quite as bad as a Friday afternoon document dump, since it would just make it in time for the Monday morning newspapers, but pretty close to the famous bad-news strategy every administration employs.

If they announced it when it would get a lot of press, you’d accuse them of trying to “distract” from other stories. If they announced it when it would get little press, you’d accuse them of trying to hide the bad news. Is there a time that they could have announced it such that you wouldn’t have framed it in a bad way?

I was just thinking about what it has gotten us and what that could mean on the court. Consider how almost 18mos of Kagan’s no. 1 fan running this country has galvanized all of us who value limited government and the constitution. Look at what happened in Utah senate race- even RINO supporters are beginning to turn on the party’s status quo.

So, given this and how SCOTUS totally opposed her on that Harvard recruiter case, is it possible that Kagan will have the same affect on the the other judges- will she be so judically crass and mediocre to cause other judges to rediscover their love for Madison’s constitution and galvanize their will to vote down statists’ idea of law?

So that’s a “no, I can’t explain it, I just like ripping on the looks of anyone Obama nominates that isn’t more conservative than Scalia”?

Neither of these things means that she would vote this way if she was a justice.

As a lawyer, she was merely doing a job for her client, the Obama admin.

We don’t know what she’ll do as a judge.

blink on May 10, 2010 at 9:40 AM

…so exactly what are we supposed to base our opinions on, if not her own words? Stating that we don’t know what she’ll do as a judge, after basically stating you already know her intentions by claiming she’s doing Obama’s bidding, really tends to cause a contradiction.

The president listed the qualities he will look for in a nominee: “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”

The selection of a professional Harvard academic with no judicial or private sector experience, and whose crowning legal achievement was being unanimously overturned by the Supreme Court is preposterous.

Sotomayor had a wealth of Judicial experience, but that was not good enough either. I dont like the idea of Obama appointing justices either, but we have not got 2 super radicals, it could have been alot worse. Even Bush f%^$ked this up, look at Alito.

Squid Shark on May 10, 2010 at 9:28 AM

No she didn’t, and yes, she was a radical. You seem to have a short memory.

No she didn’t, and yes, she was a radical. You seem to have a short memory.

MadisonConservative on May 10, 2010 at 9:53 AM

She has been on the right side on some issues which is all I really expected of her and she and Alito are the most judicially experienced appointees in years. And Alito is turning out poorly overall. IMO.

Kagan’s entire career has been spent ping-ponging her way up the ladder of academic incompetence to reach the holy grail of “educational administration.” A brief stint in the Clinton White house as a lower-level advisor had to substitute for her lack of publications in even achieving tenure.

Somehow I’m not seeing anything that would make me think she has even the basic competence to be a Federal Judge, much less a Supreme Court Justice.

You can read all the books you want about fishing…it doesn’t mean you will catch a fish…you can read all you want about hitting a baseball, doesn’t mean you can play for the big leagues…you can read all the books on engineering, it doesn’t mean you can step out and build the city’s tallest building, or strongest bridge.
Experience means something, and she has none, only academic…she has lived in a make believe world, shielded by her contemporaries from the real world.
You or no one else has the slightest idea of how she will interpret the laws…except she will interpret them through her very narrow experience of being an academia, isolated, ivy league.
When a person presents a case to her, will she look at the evidence, or fit the evidence to her academics…no one knows because she has never, ever, faced that very basic and simple challenge…of discerning right from wrong from evidence.

Lefties will certainly love to point out that we’re overly concerned with those shallow and unserious things – are they right?

Midas on May 10, 2010 at 9:44 AM

Conservatives who fret about the interpretations of Leftists intent on destroying our Constitution are not much better than Leftists who worry what the arab street is thinking when they ask “why do they hate us.”

Conservatives who fret about the interpretations of Leftists intent on destroying our Constitution are not much better than Leftists who worry what the arab street is thinking when they ask “why do they hate us.”

Western_Civ on May 10, 2010 at 10:05 AM

I’m glad you care enough about the Constitution that you’re willing to rip on the looks of a SCOTUS candidate rather than waste time addressing her opinions and resume.

She has been on the right side on some issues which is all I really expected of her and she and Alito are the most judicially experienced appointees in years. And Alito is turning out poorly overall. IMO.

Squid Shark on May 10, 2010 at 9:57 AM

Right side as in…what? Not being a dissenter in overwhelmingly one-sided decisions? And exactly how is Alito turning out poorly? He’s operating as a Constitutionalist.

I’m glad you care enough about the Constitution that you’re willing to rip on the looks of a SCOTUS candidate rather than waste time addressing her opinions and resume.

MadisonConservative on May 10, 2010 at 10:06 AM

I’m sorry, but ludicrous appointees like this from the left do not deserve our benefit of the doubt, our respect or even our sympathy. That train left the station ten years ago. They are to be attacked from every angle, to be mocked, despised, etc…

Today there is absolutely no negotiating with the left, especially anyone from the Obama camp. They are little more than terrorists with mostly non-violent methods.

Conservatives who fret about the interpretations of Leftists intent on destroying our Constitution are not much better than Leftists who worry what the arab street is thinking when they ask “why do they hate us.”

“Dean Kagan’s nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation’s high court.

….all she is or has done…is be a liberal activists.
The typical leftist standards of not needing any experience in the field you are supposed to be an “expert” in but an undying devotion to liberal ideology.
This nomination makes about as much sense as electing a President whose only accomplishments were of voting present over 130 times as a Senator,writing two books about yourself,and being a failed community organizer.

…well there is going to be one good positive about this nomination…I am going to absolutely enjoy watching liberals argue and praise a judicial nominee that fought so hard for the rights of indefinite detention ….
….going to be fun watching the “peace loving” crowd that screamed “war crimes” 24/7 now support and defend these policies…..

Conservatives who fret about the interpretations of Leftists intent on destroying our Constitution are not much better than Leftists who worry what the arab street is thinking when they ask “why do they hate us.”

Western_Civ on May 10, 2010 at 10:05 AM

I’m glad you care enough about the Constitution that you’re willing to rip on the looks of a SCOTUS candidate rather than waste time addressing her opinions and resume.

MadisonConservative on May 10, 2010 at 10:06 AM

Hello! What opinions? The woman is another of Maobama’s minted ciphers. She’s not a judge and hasn’t written anything anyone knows of. Other than her opposing Heller and advocating against military recruiters, WHERE ARE HER OPINIONS?

It seems you cant wrap your mind around the fact that it’s the liberals in this country who want to altogether eliminate qualifications from the deliberative process, which is why they put up these clowns. In light of this, what other criteria do you think they want the lumpen proles to zero in on?

The selection of a professional Harvard academic with no judicial or private sector experience, and whose crowning legal achievement was being unanimously overturned by the Supreme Court is preposterous.

I’m sorry, but ludicrous appointees like this from the left do not deserve our benefit of the doubt, our respect or even our sympathy. That train left the station ten years ago. They are to be attacked from every angle, to be mocked, despised, etc…

he had a pretty darn good week, including the jobs report and the pathetic attempts to resurrect the stillborn “obama’s katrina” meme.

sesquipedalian on May 10, 2010 at 10:16 AM

yea because in liberal land,not acting fast enough to carry out disaster plans or having the equipment to carry them out while you are on vacation and yucking it up with leno is a sign of true leadership….

I bet now that Obama says Europe is a “country” liberals like sesquip here believe it is so.

Maybe Obama can come out and brag some more about his Health Care bill that was supposed to help the democrats out so much but instead they are running from it night and day.

….or condemn Arizona for putting forth the effort to enforce Immigration law that federal leaders like Obama won’t do but criticize while over 60% of the country supports it.

…yea,in liberal land Obama had a great week….the rest of the country that is based in reality…not so much.

Well, it wasn’t meant as a joke, but think about it. Who has done more damage to Conservatism and Constitutional Republicanism in the last 20 years–is it the radical leftist clown screaming for entitlements based on group victimology? Or is it the elected RINO (and RINO electorate) who walks on eggshells afraid to be called a racist, sexist, bigot, homophobe and compromises on policy which waters down individual rights? It’s a little hard to pick, no? I’m not making a moral equivalence–just trying to show the worthless of spoils of Faustian bargain making.

“he had a pretty darn good week, including the jobs report and the pathetic attempts to resurrect the stillborn “obama’s katrina” meme.

sesquipedalian on May 10, 2010 at 10:16 AM”

So he’s got that whole oil spill cleaned up? Great. Guess I missed it, here in my conservative cocoon. Because, if I were president, I wouldn’t consider it a very good week, if there were an impending natural catastrophe on my country’s shores, and my people couldn’t figure out a darn thing to do about it.

Wow. The entire liberal judiciary to choose from, plus people like Jennifer Granholm and Kathleen Sebelius, and he picks a woman who has never even been a judge in a law school moot court. His own wife is better qualified for the job than Elena Kagan, for crying out loud.

For “the most transparent administration in history,” Kagan has a very thin paper trail to give clues to her beliefs. She has not published much — a rarity among Harvard Law deans — which Ed Whelan argues doesn’t meet Kagan’s own standards for Supreme Court justices.

All of which mirrors Obama’s M.O.

Tack on her views on the 2nd Amendment, the WoT, (most significantly) the authority of the Executive branch, and the reality that a more radical nominee would only further reinforce the popular view that Obama’s a Leftist radical (with consequences in November), and it’s not hard to see why he nominated her. For him right now, she is a safe, comfortable choice.

Tack on her views on the 2nd Amendment, the WoT, (most significantly) the authority of the Executive branch, and the reality that a more radical nominee would only further reinforce the popular view that Obama’s a Leftist radical (with consequences in November), and it’s not hard to see why he nominated her. For him right now, she is a safe, comfortable choice.

Harpazo on May 10, 2010 at 10:34 A

No, no, no.

Obama has chosen someone that appears to have reasonable views on these issues. That doesn’t mean she does.

How she represented her client as a lawyer tells us nothing about how she would decide cases as a judge!

if I were president, I wouldn’t consider it a very good week, if there were an impending natural catastrophe on my country’s shores, and my people couldn’t figure out a darn thing to do about it.

notropis on May 10, 2010 at 10:27 AM

…But…But…But they have been on the case since “Day One”..

.According to this law passed in 1989:

A law passed a year after the 1989 Exxon Valdez disaster makes the owner of a rig or vessel responsible for cleaning up a spill. But oversight of the cleanup is designated to the Coast Guard, with advice from other federal agencies.

…oversight…which was non-existent.

….Napolitano shows up 9 days later and gives a great example of how “the system works” in the Obama administration:

The delay meant that the Homeland Security Department waited until late this week to formally request a more robust response from the Department of Defense, with Ms. Napolitano acknowledging even as late as Thursday afternoon that she did not know if the Defense Department even had equipment that might be helpful.

…and where was one of the top men in the Obama administration who was in charge of handling this disaster..

….Strickland decided it was a good time to go white water rafting:

Though his agency was charged with coordinating the federal response to the major oil spill in the Gulf of Mexico, Department of the Interior chief of staff Tom Strickland was in the Grand Canyon with his wife last week participating in activities that included white-water rafting, ABC News has learned.

….priorities…priorities…priorities.

………Obama shows up 12 days later…..
….after taking a vacation and playing comedian with Leno.

….to blame everybody but himself……

…not a single fire boom to enact their own plan to burn off the oil slick even though the weather was fine those first few days……

WASHINGTON — To hear Obama administration officials tell it, they’ve been fully engaged on the Gulf Coast oil spill since Day One, bringing every resource to bear and able to ensure without question that taxpayers will be protected.

Not quite.

But in the land of unicorns and butterfly farts…this passes as “leadership from day one”….

I’ve never heard of her. Let me just check my Ipod, Ipad, and Xbox for the unfiltered information. Being spoon-fed by the liberal media is soooo uncool; why it’s like turning to Robert Gibbs for truthful anwers!

Perhaps Elena Kagan will help undermine the prestige of an essentially evil institution, the Supreme Court. We can only hope. She is a state functionary of an all too familiar sort, who has dedicated her life to expanding state power and especially executive power, as she climbed the greasy pole of domination. She could have served in any totalitarian regime, and will be unopposed in any real sense in this one. [...] Kagan is openly a commissar. She also worked for Goldman Sachs. The police state + Wall Street = Obamaism.

Right side as in…what? Not being a dissenter in overwhelmingly one-sided decisions? And exactly how is Alito turning out poorly? He’s operating as a Constitutionalist.

MadisonConservative on May 10, 2010 at 10:09 AM

Read the Gant case, it is probably the best example of Alito and to a lesser extent Robert’s willful disregard for proper Criminal Procedure. Thank god we have Scalia and Thomas who have some damn sense.

I’m with you in spirit. I agree that the Leftists have committed most of the active damage, but the Right has committed passive neglect (and sometimes collaborated with the Left). But really, who cares about pointing fingers at this juncture? The Left will never accept any blame (too stupid and too much cognitive dissonance), because they don’t see anything wrong with having a Marxist icon controllling their lives. Conservativism is somehow stuck trying to operate above the political fray while accomplishing restorative goals which are anathema to the cheerleaders of dreck like Enema Kagan.

Either way, the Supreme Court was not impressed. Not only did the justices dismiss Kagan’s arguments, not a single liberal on the court offered a word of support. Souter, Ginsburg, Breyer and John Paul Stevens (the man Kagan would replace), all agreed with the majority decision written by Chief Justice Roberts.

If you were giving a critique of Ginsberg or Stevens I’d probably give your comments half a thought. When you start critiquing judges who run against your belief system, I don’t give your comments any weight at all. You’ve never shown yourself to be anything but a ideologue who demagogues everything to do with politics from the center going to the right.

I’ve already written Senators Corker and Alexander to oppose her nomination on the grounds she is unqualified for the job. Sometimes the truth hurts, but I’m not qualified either and I’d expect the left to scream bloody murder if a conservative was nominated…. oh wait, too late for that one!

She’s famous for “concensus building” and “empathy”, in Obama’s 2005 words for what he looks in a potentisl SCOTUS judge.

Judges are supposed to follow the constitution, the law, not to build concensus and be empathetic. Otherwise they c/b empathetic to terrorists, union thugs and all kinds of scum. She is also foremost an Obamabot, one for maintaining his executive orders and czar camps, no matter what he decides with both.

A side note – she looks like Napolitano and both look like seargeants in the Marines. Having both of them top/center on Drudge, is enough to scare children and a nation.

When women look like the two of them and men look like Geithner, we know we’re in a steep decline.